[JURIST] US Homeland Security Secretary Michael Chertoff [official profile] warned [recorded audio] the national convention of the conservative Federalist Society [advocacy website] in a speech [transcript] Friday that international law was increasingly being used as a "rhetorical weapon" against the United States and urged members of his audience to "confront…the rise of an increasingly activist, left-wing, and even elitist philosophy of law that is flourishing not in the United States but in foreign courts and in various international courts and bodies."
Chertoff said that objections from privacy advocates, especially in the European Parliament, to proposed American uses of passenger record data [JURIST report] on air travelers coming from Europe to the US had lately prompted him to realize "how much of my ability to do my job in leading a department that protects the American people depends upon constraints that others want to put upon us based on their conception of either international law or transnational law." Citing rulings by the International Court of Justice against the US in 1986 (Nicaragua v. United States) and 1998 (Breard v. Gilmore) and a 2004 advisory ruling against Israel regarding its "security fence", he expressed general concern about what he described as "an increasing tendency to look to rather generally described and often ambiguous "universal norms" to trump domestic prerogatives that are very much at the core of what it means to live up to your responsibility as a sovereign state":
So what we see here is a vision of international law that if taken aggressively would literally strike at the heart of some of our basic fundamental principles: separation of power, respect for the Senate's ability to ratify treaties, and the Senate's ability to reject treaties, and respect for federalism and the importance of letting the state courts set their own rules to govern what they do….
[T]he fact is whether we like it not, international law is increasingly entering our domestic domain. The Supreme Court has begun to bring it through cases like Hamdan and Alvarez-MacHain, which allowed a very small opening but still an opening in the door under the Alien Tort Claims Act to international human rights law being a source of direct causes of action here in the United States.
Through various European and other kinds of domestic protection rules, they're trying — there's an increasing effort to control our use of information in our own country to determined who comes in from outside, and, of course, international law is being used as a rhetorical weapon against us. We are constantly portrayed as being on the losing end, and the negative end of international law developments.
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